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Sides Exchange Legal Blows Over Black Sea Bass

OCEAN CITY – Mixed signals continue to come out in the ongoing battle over the abrupt closure of the black sea bass fishery last fall with the defendants in a multi-party lawsuit against the federal agency responsible for the closure filing a formal answer to dismiss the case this week, and the agency responsible for providing the data that precipitated the change openly admitting the numbers could be wrong.

Based on estimated catch data that showed black sea bass anglers up and down the east coast far exceeded the established quota for 2009, the National Marine Fisheries Service (NMFS) closed the fishery without warning in October for a period of six months and promised larger minimum keeper sizes, smaller creel limits and shorter seasons for 2010. The abrupt closure of one of the most important fisheries for Ocean City and the entire east coast was met with consternation from the recreational fishing community in the resort area and in coastal areas from North Carolina to Maine.

In response, the Recreational Fishing Alliance (RFA), a national advocate for the industry, joined by 11 other plaintiffs including two Ocean City charter boat captains and several individuals and groups in neighboring Delaware and New Jersey, earlier this month filed suit in U.S. District Court against NMFS, seeking an immediate injunction against the federal agency to reverse the decision and review more accurate data before arbitrarily closing the fishery.

Among the local plaintiffs in the suit are Ocean Princess Captain Victor Bunting and Judith M Captain Mike Abbaticchio, who, like so many other head boat operators in the resort, rely on an open and active black sea bass fishery for their livelihoods.

“This closure was unprecedented for a fish whose stocks are considered rebuilt, not overfished, and not subject to overfishing,” the complaint reads. “The closure was largely based upon the misapplication and misuse of a fatally flawed angler survey, which NMFS itself has acknowledged is not to be used for this type of decision. The result of this closure is social and economic devastation to the marine recreational fishing community.”

This week, however, NMFS attorneys filed a formal answer to the complaint, dissecting the document, acknowledging some aspects of it while vehemently denying its most damning sections. The formal answer seeks an immediate dismissal of the lawsuit, which would, if granted, effectively allow the closure and the associated plans for the fishery for 2010 to move forward.

Meanwhile, conflicting information on the status of the black sea bass fishery along the east coast has emerged that appears to run counter to the information upon which NMFS decided to abruptly close the popular fishery. At a meeting earlier this month, the Mid-Atlantic Fishery Management Council, which collects and interprets the catch data provided to NMFS, essentially admitted its estimates for 2009 were flawed and recommended increasing the black sea bass quota for 2010.

In a nutshell, the council is asking NMFS to reconsider the draconian restrictions on black sea bass proposed for 2010, citing a re-estimate of its original 2010 acceptable biological catch recommendation. The Mid-Atlantic Council’s Scientific and Statistical Committee (SSC) is now recommending a 2010 black sea bass quota of 4.7 million pounds after recommending just two months ago the quota for 2010 be set at 2.7 million pounds.

From the beginning, local anglers have argued the data used by NMFS in the decision to close the fishery without warning in October was fatally flawed, which is why the federal suit was filed in the first place.